ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. Ennis-Taylor, 2017 ONSC 5948
COURT FILE NO.: CRIMJ(P) 1920/16
DATE: 2017 10 24
BETWEEN:
HER MAJESTY THE QUEEN
M. MacKenzie, Counsel for the Crown
APPLICANT
- and -
JAMALA ENNIS-TAYLOR
J. Filiberto, for the Accused
RESPONDENT
HEARD: September 26, 2017
REASONS FOR EVIDENTIARY RULING
LEMAY J.
[1] The accused, Jamala Ennis-Taylor, is charged with two counts of sexual assault and one count of forcible confinement from incidents that allegedly took place in November of 2015. His trial is scheduled to proceed before a jury starting October 10th, 2017.
[2] In this application, the Crown seeks the following:
a) To have the evidence between the November 8th, 2015 count of sexual assault and the November 30th, 2015 count of sexual assault considered as similar fact evidence as between counts;
b) To have the evidence with respect to the accused’s sexual assault of D.M. admitted as similar fact evidence in this trial.
[3] The parties have consented to an Order addressing the similar fact evidence on the two counts of this indictment, and I so order. The second part of the Crown’s application is contested.
[4] In brief, the Crown seeks to admit the evidence of the accused’s sexual assault of D.M. The accused was convicted of sexual assault and forcible confinement of D.M. as a result of an incident that took place in early September of 2009. The parties have agreed that, if this evidence is admitted, it will be presented to the jury through an agreed statement of fact. The parties filed the proposed agreed statement of fact with me at the outset of the trial on October 10th, 2017. I have considered that statement, along with all of the other material in the application record, in making my decision in this case.
[5] For the reasons that follow, I am of the view that the prejudice flowing from the proposed similar fact evidence is greater than its probative value. As a result, the Crown’s motion to admit this evidence is dismissed.
[6] In the sections that follow, I will set out the evidence in this case, a summary of the proposed similar evidence, the positions of the parties, and the law and its application to these facts.
The Evidence in this Case:
[7] The trial has not yet taken place, so I have not heard any viva voce evidence from the complainant. However, I have been provided with transcripts of both her testimony at the preliminary inquiry and the statement that she provided to the police.
[8] It is not known whether the accused will testify. However, some aspects of the accused’s defence can be gleaned from the cross-examination of the complainant at the preliminary inquiry. First, it does not appear that identity is going to be an issue in this case. Second, the accused may allege that the sexual activity in this case was consensual.
[9] In a separate ruling I released to the parties on expert evidence, I set out a summary of the anticipated evidence of the accused. I have incorporated that summary into these reasons in the paragraphs that follow, and added some other points that relate directly to this application.
[10] However, I caution here (as I did in my other decision) that I have not made any findings of fact. This is simply the evidentiary record that I am relying on for the purposes of determining the motion.
[11] The complainant and the accused originally met through a website called Badoo. They exchanged several messages over this website, including photographs, before they actually met in person.
[12] They agreed to meet for a drink. In the evening of November 11th, 2015, the accused picked the complainant up outside her residence in Brampton. The accused and the complainant went to a bar near where the accused lived in Scarborough, where they had a drink. The complainant thought they would be going to a bar near her house, and only discovered that they were going to Scarborough when the accused got on the highway.
[13] On the Complainant’s evidence, they each had one drink at this bar, and spent approximately ten minutes at this bar.
[14] After the bar, the complainant and accused went to the accused’s apartment, where the complainant had a couple of shots of cognac. It was the complainant’s evidence at the preliminary inquiry that both of them went outside onto the balcony, where the accused smoked marijuana and the complainant smoked a regular cigarette.
[15] The parties came back inside and, all of a sudden, while the complainant was on the couch, the accused allegedly put a condom on, pulled up the complainant’s sweater dress and forced sexual intercourse on her. The complainant asked the accused to stop on a number of occasions, and told the accused that she had a boyfriend.
[16] After this alleged assault, the complainant blocked the accused online. He attempted to contact her through Badoo, but she did not respond initially. The accused then contacted the complainant towards the end of November, and they had an exchange of messages. After this exchange of messages, the parties agreed to go out for drinks again. The second encounter between the accused and the complainant took place on the evening of November 29th – 30th, 2015.
[17] At the preliminary inquiry, the complainant testified that part of the reason that she went out with the accused again was because she wanted to ask the accused why he assaulted her. The complainant also acknowledged that she never actually asked the accused this question during their second encounter on November 29th – 30th, 2015.
[18] In any event, the parties agreed to meet at a bar in the area where the complainant lived. They met at this bar. Shortly afterwards, at the complainant’s request, they went to another bar where the complainant had worked previously. The complainant had several drinks during the course of the evening. At one point, the complainant told the accused that she was done and wanted to go home.
[19] The complainant and the accused got into the accused’s car and started driving. The accused told the complainant that he was going to a hotel because he could not drive home. He went to a hotel with the complainant, who remained in the car while the accused checked in.
[20] The complainant’s next memory is of the accused being on top of her and having vaginal intercourse with her. She also remembers being in different sexual positions, and that the accused was wearing a condom. The complainant remembers the accused holding her down very tightly and, at one point, digitally penetrating her anus.
[21] The Complainant also testified that the accused would not initially permit her to leave the hotel room.
[22] After the accused got off her, the complainant got dressed and left the hotel room. She went outside and tried to call a cab. The accused came out of the hotel room and offered to drive her home. However, she ran away, saw a police cruiser, and reported the assaults to the police.
The Proposed Similar Fact Evidence:
[23] I have based this summary of the proposed similar fact evidence on the agreed statement of fact, the verdict sheet from the indictment of the accused, and from the transcripts of the testimony of D.M., the complainant in that case.
[24] On June 21st, 2011, the accused in this case was found guilty of sexual assault and unlawful confinement against D.M., which are the same charges as in this case. The accused was acquitted of choking D.M. These findings of guilt were registered by a jury, so there are no reasons for them, and we have no factual findings to rely on. The reasons for sentence do not disclose factual findings on the nature of the sexual assault or forcible confinement.
[25] However, the parties have filed an agreed statement of fact for this evidence. That statement provides as follows:
Agreed Statement of Fact: Sexual Assault and Forcible Confinement of D.M.:
The Respondent was found guilty after trial of sexual assault and forcible confinement against D.M. occurring on September 12, 2009.
The victim and Respondent met briefly for the first time in June, 2009 at a 7-11 store. He called her over to his car and asked her for her number. The victim gave the accused her number.
The accused lied about his name.
The accused and victim did not have any contact until September 12, 2009. The accused called the victim. They spoke on the phone. The victim had to work that day.
The accused suggested taking D.M. out for lunch to McDonald’s before work, and then driving her to work. The victim agreed to go for lunch with the accused and have him drive her to work. She invited him to the birthday party she was having for herself that night.
The victim provided her address to the accused.
The accused picked the victim up from her home. He met her mother and a friend.
The accused drove to somewhere near Bayview and York Mills and told the victim he had to pick something up first, and that they would go to McDonald’s and the highway was right there, so he could take her to work after.
They stopped at a 3 storey apartment building. The accused told the victim that he wanted to show her his place. He said they would leave as soon as she saw it.
The accused took the victim into his residence. The accused and victim discussed their tattoos. The victim sat down on the couch.
There was no kissing or intimate contact. The accused out of the blue told the victim he wanted to “eat [her] pussy”.
The accused would not let D.M. leave. She started towards the door, but he grabbed her and threw her to the floor. The accused tried to force oral sex on her. D.M. tried to use her phone and the accused caused her phone to be flung out of her hand.
The accused then dragged the victim to the bedroom. He started taking off his pants and told the victim to take off her underwear but she didn’t. The accused pulled her underwear off. He started giving her oral sex again. The victim was crying and begging him to stop and telling him that she needed to go to work. The accused said he would finish by 2:30 (she started work at 3:00).
D.M. saw the accused take his penis out and come towards her so she told him to put a condom on and he did. He forced vaginal intercourse on her.
He was really, really rough with her.
She was trying to push him back.
The victim said she’d cooperate because she was scared for her life.
He just kept having intercourse with her “harder and harder”. He told her to turn over and when she didn’t want to, he got mad. She turned over. He continued to force vaginal intercourse on her until he ejaculated.
D.M. lost her labret (lip ring) and hair extension during the struggle. Afterwards, she collected her hair extension from the bedroom, her lip ring from the bedroom floor and her cell phone from the floor in the hallway.
Afterwards, the victim tried to pretend like she wasn’t upset because she was scared.
The accused drove the victim to work.
In his contact with the victim afterward, the accused acted like nothing had happened. When he dropped the victim off, he asked her if she was mad and asked for a hug. The victim told him that she wasn’t mad and gave him a hug, so as not to arouse his suspicion that she was going to report.
The victim reported the sexual assault to her employer and called her mother when she got to work.
[26] These are the facts that would be put before the jury. In addition, I note that at the time of this assault, D.M. was sixteen, about to turn seventeen. In this case, the complainant was in her late 30’s at the time of the alleged assaults.
The Positions of the Parties
[27] The Crown asserts that the accused has a propensity to seek out women under a false identity, engage with them in circumstances that allow him to get them into his car and under his control, and then take them to an unfamiliar location where he forcibly confines them and sexually assaults them. The assaults are physically rough and do not illustrate any attempts at any consensual sexual activity or lower level intimate contact.
[28] The Crown asserts that there are many significant similarities between the alleged sexual assaults in this case and the sexual assault perpetrated by the accused on D.M. The Crown asserts that there are no significant dissimilarities between the two sets of events and, as a result, the prejudice the accused would suffer from the admission of this evidence is low. Accordingly, the Crown asserts that the balancing of probative value and prejudicial effect favours the admission of this evidence.
[29] The Defence asserts that, at law, similar fact evidence is only admitted in exceptional circumstances where its probative value outweighs the prejudicial effect. In this case, the accounts provided by the two complainants are very different, both in terms of the frequency, nature, and circumstances surrounding the incidents.
[30] The Defence also asserts that, where similarities do exist between these cases, they are non-specific and generic in nature. As a result, the evidence taken at its highest only demonstrates that the accused may have a general disposition to commit a sexual assault. Therefore, the evidence, if admitted, would give rise to a significant risk of prejudicial reasoning, including the risk that the jury will conclude that the accused has a predilection for non-consensual sexual contact with women, and therefore must have committed both offences.
The Law and Its Application
a) The Legal Principles
[31] The leading case on the admission of similar fact evidence is R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. In addition, the Ontario Court of Appeal issued R. v. Bent, 2016 ONCA 651 in mid-2016. These cases set out a framework to consider the admissibility of similar fact evidence.
[32] The analysis starts from the principle that, generally, similar fact evidence is excluded. This has been affirmed by a number of Supreme Court cases, including Handy, at para. 55, and R v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717. It is up to the Crown to demonstrate, on a balance of probabilities, that the otherwise excluded evidence should be admitted. This requires the Crown to demonstrate that the probative value of the evidence outweighs its prejudicial effect: see Handy at para. 151.
[33] The cases also note that, where the similar fact evidence is of a morally repugnant act committed by the accused, then the prejudice is significant and the probative value must also be significant. In this case, the evidence is a morally repugnant act, in that it was a sexual assault committed on a sixteen year old.
[34] In conducting the analysis, Handy and Bent set out several steps that must be completed by the trial judge. The first part of the test requires the Court to consider the probative value of the evidence, which is done in four steps as follows:
a) The evidence must be adduced for a specific issue. The Court should not consider evidence that merely demonstrates that the accused is of bad character. As a result, the Court must identify the issue that the evidence relates to.
b) Then, the Court must determine whether there is any collusion, or potential for collusion, that might undermine the improbability of coincidence.
c) Once the first two steps are completed, the similarities and differences are considered by the Court. These similarities and differences are not to be simply added up in an accounting exercise. Instead, the Court must remember that, at a microscopic level of detail, differences can be exaggerated and multiplied, and at a macroscopic level, everything tends to appear similar. Where to draw the line is a matter of judgment and discretion: see R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33 at paragraph 60.
d) Finally, the Court must consider the strength of the evidence.
[35] Once the probative value of the evidence is assessed, the Court must then consider the prejudicial effect. There are two types of prejudice, moral prejudice and reasoning prejudice. Moral prejudice is the risk that the jury will convict the accused on the basis that he is a bad person who deserves to be punished. Reasoning prejudice results when the jury is distracted from their task, and there is a risk that they give the similar fact evidence more weight than it deserves.
[36] Once the probative value and the prejudicial effect of the evidence are considered, the Court then turns to balancing those factors to determine whether the evidence should be admitted.
b) Application to This Case
[37] I start with the issue in question. The law is clear that identifying the issue in question as “credibility” creates too large of a pathway for the admission of propensity evidence, which can result in a risk that evidence of nothing more than the accused’s propensity being admitted.
[38] In this case, identity is not an issue. Based on the record before me, the issue in this case is the actus reus. In other words, the Crown wishes to use the similar fact evidence to support the conclusion that the complainant did not consent to having sex with the accused. The Crown also points out, correctly, that discreditable conduct evidence can be admissible for the purpose of demonstrating the motive (or animus) of the accused: see R. v. D.S.F., 1999 CanLII 3704 (ON CA), [1999] O.J. No. 688 (C.A.).
[39] The Crown argues that, because the similar fact evidence in this case goes to the actus reus, less cogent similarities may render the evidence admissible. In support of this conclusion, the Crown points me to R. v. Cresswell, 2009 ONCA 95. However, the Court of Appeal has also commented on this issue in Bent at para. 40, where the Court stated:
In assessing the probative value of the evidence, the court must identify the issue in question and ask how the similar acts tend to prove that issue. In Handy, Binnie J. noted that in cases such as this, where the issue is actus reus rather than identification, the degree of similarity required is not necessarily higher or lower, but rather the issue is different and the “drivers of cogency in relation to the desired inferences will therefore not be the same”: Handy at para. 78.
[40] In my view, in this case the considerations that I must apply are different from an identity case, but the standard is not higher or lower. This is still evidence that is, prima facie, inadmissible and it must be subjected to the same analysis before it can be admitted.
[41] In terms of collusion or the potential for collusion, there is nothing before me to establish that the complainant in this case and D.M. knew each other. The parties therefore agree that there is no discernable risk of collusion in this case. This brings me to the similarities and differences that exist in this case.
[42] Handy sets out a series of questions that the Court should ask in determining the similarities and differences in the evidence. I will review the most relevant factors in the paragraphs that follow.
[43] I start with the lapse of time. In this case, the accused sexually assaulted D.M. more than six years before the allegations in this case took place. This is a fairly significant gap in time.
[44] There was only one similar act. As a result, this suggests that the evidence is less probative, as there is limited evidence to establish a “pattern” of behavior. On this point, see Bent at para. 60.
[45] The Crown points to the following similarities in terms of the details of the different assaults:
• In both cases, the accused forced sexual intercourse on the victim;
• In both cases the accused was very rough with the victim, causing pain to both victims;
• In both cases the accused put the victim into different sexual positions;
• In both cases the accused used a condom notwithstanding that he was raping the victim;
and
• In both cases the accused forcibly confined the victim.
[46] The problem with these similarities is that they are, for the most part, generic. In every case of sexual assault, the accused forces some sort of sexual contact on the victim. Many of those cases involve forced sexual intercourse.
[47] It is clear that the accused was very rough with D.M, in that he grabbed her, choked her, dragged her around the apartment and forced oral sex on her. The level of roughness in this case does not appear, based on the evidence I have, to be the same. In particular, I have seen little evidence that the complainant was dragged, and no evidence that oral sex was forced upon her. As a result, these factors suggest that the two assaults are not similar in nature.
[48] I also do not see the Crown’s assertion that the accused put both D.M. and the complainant into different sexual positions, and that he used a condom, to be similarities for two reasons. First, these are both more general statements, rather than particular statements. Second, the condom was used in the assault on D.M. at her request. In this case, I am not aware of the complainant making any request of the accused to use a condom.
[49] Then, there are the circumstances surrounding the alleged similar acts. In this respect, the Crown identifies the following similarities:
Circumstances surrounding or relating to similar acts
In both cases, the accused
• sought out a female who was previously unknown to him;
• lied about his name;
• arranged for the victim to go on a date with him;
• arranged the date without any substantive prior contact with her;
• arranged to get the victim into his car so that he was in control of their destination
• took the victim to an unexpected location that was not part of the “plan”
• took the victim to a place that was private where he could be alone with her and away from detection (his residence, hotel)
• made no intimate overtures or attempts to engage the victim in consensual kissing or low level intimate behavior
• immediately forced a sexual act on the victim
• was rough with the victim
• did not stop when the victim tried to get him to stop or push him off
• after the sexual encounter, acted as if nothing unusual had occurred. It is submitted that this was the intention of having the victim doubt herself and decline to report.
[50] These circumstances can be divided into two different parts. First, there is the pre-assault behavior, where the accused is setting up the date and going out with the complainant and D.M. Then, there is the behavior just before and during the assault.
[51] In terms of the pre-assault behavior, the fact that the accused sought out a female who was unknown to him does not create a strong similarity between these cases. The circumstances in which the accused met D.M. (on the street at a 7-11) are different than the circumstances in which he met the complainant (online). Similarly, the level of the pre-meeting interactions that the accused had with the complainant is significantly higher than with D.M. Remember that the accused had no contact with D.M. between the day he met her in June of 2012 and the day the assault took place. Further, there was very little contact between the accused and D.M. before the assault took place, even on the day of the assault. In this case, there was an exchange of a number of messages between the complainant and the accused before they had their first date.
[52] The Crown also states that the accused lied about his name. This is accepted in the agreed statement of facts with respect to D.M. However, the accused simply used an alias on a dating website. The first is a specific, intentional lie. The second is motivated differently, and is not directed at the complainant specifically.
[53] In terms of the accused controlling the destination, he gave D.M. no choice about where she was going. He took her on an errand and he brought her straight back to his apartment. In this case, on both occasions, the complainant and the accused were out in a public place before they went to his apartment or hotel room. In my view, there was more control imposed on D.M. more quickly than in the case of the complainant.
[54] Next, there is the fact that the accused assaulted D.M. without any lower level intimate behavior, such as kissing. This also appears to be true of the first alleged assault on the complainant in this case. However, there are gaps in the complainant’s memory of the second assault, so it is more difficult to determine whether this similarity is also potentially present in the second allegation.
[55] Finally, the Crown states that the accused’s conduct in both cases reveals that he had a plan to assault both the complainant and D.M., and that he had a strategy to prevent them from reporting the assault by pretending that nothing had happened after the assault took place. It is clear that he had such a plan with D.M., but it is less clear that he had such a plan with the complainant, as he spent more time in public in more different locations with her before either assault took place.
[56] In terms of the accused’s conduct, I also note the age difference between the two complainants. In D.M.’s case, she was sixteen years old when the assault took place, which means that she might have been more susceptible to a plan to assault her and then not have her report the assault by behaving as if nothing had happened afterwards.
[57] However, breaking these events down into their component pieces runs the risk that I will engage in too much of a microscopic analysis. As a result, it is important to step back and consider how the all the pieces fit together.
[58] Even when I step back, however, the similarities in this case are more of the generic kind, and do not seem to indicate the level of similarity that should be present in a similar fact case. The events leading to the assaults in this case were different in two key respects. First, the accused had considerably more contact with the complainant in this case prior to meeting up with her the first time than he did with D.M. Second, the accused and the complainant went out to a public place before they went back to the accused’s apartment (or hotel room). These differences are apparent even at the macroscopic level, and lead me to the conclusion that these two incidents do not have nearly the level of similarity urged upon me by the Crown.
[59] This brings me to the strength of the evidence that has been provided in this case. Unlike many of the other cases that were cited to me, the evidence in this case flows from a conviction. As a result, it is strong evidence. In addition, the fact of the conviction is not something that the defence will be able to challenge.
[60] In the end, the evidence is of moderate probative value. The fact that the accused assaulted D.M. is indisputable. However, the similarities between the two instances are not as strong as the differences.
[61] This brings me to the prejudicial effect of the evidence. I start with the moral prejudice. It is clear from the agreed statement of fact that the assault on D.M. was physically violent and came without any warning. Sexually assaulting someone in this manner is an appalling crime, and there is a risk that the jury may convict the accused because of this prior misconduct.
[62] In addition, as the Court noted in Handy, supra., at paragraph 117:
Moreover, broadly speaking, the non-consent of the ex-wife on the different occasions described in her evidence is of no relevance to whether the complainant here consented or not: Clermont, supra, at p. 135. Because complainant A refused consent in 1992 scarcely establishes that complainant B refused consent in 1996.
[63] In this case, the fact that D.M. did not consent to the sexual assault does not mean that the complainant also did not consent six years later. It requires the Court to consider the similarities and differences.
[64] At a macroscopic level, there are some similarities between these two cases. Both involve allegations of sexual assault, and physical control. Both also involve an assault that allegedly took place when the parties did not know each other well, and in circumstances where the accused had contrived to end up alone with the complainant.
[65] However, as Strathy C.J.O. noted in Bent at para. 70:
There is a risk of another form of reasoning prejudice in this case. There was only one prior incident and many of the similarities in the underlying facts were generic. This was not strongly suggestive of a situation-specific propensity to sexually assault young women. But there was a real risk that the jury would give the evidence more weight than it deserved because of the repugnant nature of the similar fact evidence
[66] Similar reasoning applies in this case. The similarities between these two circumstances are generic. The differences are more significant, even at a macroscopic level. The accused had developed more of a relationship with the complainant in this case than he had with D.M. D.M. has a clear memory of the one incident throughout the incident. In this case, the complainant’s memory has some gaps, particularly around the second incident. Finally, there is more contact between the complainant and the accused in this case before the alleged assaults take place than there was in the assault on D.M.
[67] As a result, there is a real risk that the jury would give this evidence more weight than it deserves. There is also less similarity than required to admit this as similar fact evidence. As a result, the Crown’s motion is dismissed.
LEMAY J
Released: October 24, 2017
CITATION: R. v. Ennis-Taylor, 2017 ONSC 5948
COURT FILE NO.: CRIMJ(P) 1920/16
DATE: 2017 10 24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
JAMALA ENNIS-TAYLOR
REASONS FOR EVIDENTIARY RULING
LEMAY J
Released: October 24, 2017